The story of Moses and God's righteous servants, which is in the Qur'an, is a wonderful story. One moral which can be drawn from it is that the follower should surrender to the one he is following up to the point where basic principles and the law are not contravened. If it is seen that the leader does something against these principles, one must not remain silent. It is true that the fact that in the story the things which the servant of God does are not, in his view, against these basic principles, since he sees a wider horizon and can see into the heart of the matter; they were, rather, his very duty and responsibility. But the question here is why Moses was not patient, and why he gave vent to his criticisms, despite the fact that he had promised [the servant of God] and himself that he would not make any objection? Why, then, did he protest and criticise? The defect in Moses' actions was not his protesting and criticising, but the fact that he was not aware of the undivulged aspect of the matter, the inward and secret side of the events. Of course, if he had been aware of the hidden reasons for what happened, he would not have objected, and he would have wanted to discover the secret of the affair; but as long as his actions were, from his own point of view, against basic principles and the divine Law, his faith would not allow him to remain silent. There are those who have said that if the actions of that servant of God were to be repeated on the Day of the Resurrection, Moses would still object to them and criticise them, unless, by that time, he were to become aware of the hidden reasons behind them. Moses said to the servant of God: "Shall I follow you so that you may teach me, of what you have been taught, right judgement." "Assuredly you will not be able to bear with me patiently." Then he explained the reason very clearly: "And how should you bear patiently what you have never encompassed in your knowledge?" Moses said: "Yet you will find me, if Allah will, patient, and I shall not rebel against you in anything." Moses did not say that he would be patient whether he discovered the secret of the matter or not. He merely said that he hoped he would have that patience. Of course, this patience did exist within Moses as long as he understood the reason for things.
Then the servant of God wanted to have something more definite from him; that, even if he did not discover the reason for what had happened, he would remain silent and not protest until the time came for him to explain. "Then, if you follow me, do not question me on anything until I myself introduce the mention of it to you." (117:6670) Here, the verse does not say if Moses accepted; it only says that after this they both set out together and continued till the end of the story which we all know.
At any rate, I wanted to show that the ignorant person's taqlid of the learned should not be blind allegiance. The unlawful kind of taqlid between one who is ignorant and one who has knowledge is that kind in which unquestioning obedience exists, which takes some such form as: "an ignorant person cannot quarrel with a learned person; we don't understand, perhaps the duties imposed by the sharia necessitate its being like this."
I have mentioned this story as evidence and corroboration for what was in the hadith of the Imam alSadiq.
After what I have narrated concerning the kind of taqlid forbidden by the sharia, the Imam went on to explain the kind of taqlid permitted by the sharia the kind which is to be praised, in these words: Whichever of the fuqaha' can protect his self, who can preserve his religion, who fights his desires and is obedient to the commands of his Master, then he should be followed by the people in taqlid. Of course, it is clear that the struggle of a spiritual alim with his weaker desires is very different from the struggle of an ordinary person, because the desires of each individual are associated with specific activities. The desires of a youth are one thing, the desires of an old man another; everyone, in whatever position, degree, stage or age he may be, has a particular kind of desire. The standard for subservience to inferior desires for a spiritual alim is not what we see: for example, whether he drinks alcohol or not, whether he has stopped praying and fasting or not, whether he gambles or not.[37] The standard for the subservience to inferior desires for such a person is whether he desires position, to have his hand kissed, to become famous and popular and have people walk behind him, to use the wealth of the Muslims to lord over others, to allow his friends and relatives, especially his sons, to benefit from the wealth of the Muslims. Then the Imam said: Only some of the Shii fuqaha have these great qualities and traits of character, not all of them. This hadith, on account of its final phrases, is one of the pieces of evidence in the question of ijtihad and taqlid.
So it is clear that both ijtihad and taqlid can be divided into two kinds: that which is permitted by the sharia and that which is not.
We have a principle in fiqh, which is one of the indisputable points of our fiqh, that taqlid of a dead person in the first instance is not permitted. If taqlid of a dead person is permitted, it is only when taqlid is carried on from someone who was followed [by the same person] while he was alive and is now dead.[38] Moreover, the carrying on of the taqlid of a dead person must also be with the permission of a living mujtahid. I am not concerned here with the reasons in fiqh for this principle, so I will only say that it is a very basic idea, but only on the condition that the aim of the principle is clearly understood.
The first purpose of this principle is that it should be a means for the survival of the traditional centres of learning of the Islamic sciences, so that there should be continuity, and that the Islamic sciences should be perserved - not only preserved, but that they should advance day by day and be perfected, and that those matters which had not previously been solved should be solved.
It is not the case that all our problems have been solved in the past by our ulama', and that now we have no more problems and no more work. We have thousands of riddles and difficulties in kalam (theology), Qur'anic exegesis, fiqh and the other Islamic sciences, many of which have been solved by the great ulama' of the past, but many of which remain, and it is the duty of those who follow on to solve them and to gradually write better and more complete texts in each subject, to continue each subject and develop it, just as in the past, too, exegesis, theology and law were gradually developed. The caravan must not be brought to a halt in midjourney. So people's taqlid of living mujtahids, and their heeding them, is a means to the continuance and development of the Islamic sciences.
Another reason is that every day Muslims are faced with new problems in their lives, and they do not know what there duty is in these matters. It is necessary to have living fuqaha', aware of the contemporary situation, to respond to this great need. It is narrated in one hadith concerning ijtihad and taqlid: As for alhawadith alwaqia, refer concerning them to the narrators of our hadith. These hawadith alwaqia are exactly these new problems which arise as time passes. Study and research into the books of fiqh from different epochs and centuries shows that gradually, according to the needs of the people, new problems arise in fiqh, and that the fuqaha' set out to answer them. It is for this reason that the dimensions of fiqh have increased.
If a researcher were to make a tally, he could discover, for example, in what century, in what place and for what reason, suchandsuch a problem arose in fiqh. If it were not necessary for a living mujtahid to give answers to these problems, what difference would there be between taqlid of a living person and taqlid of a dead person? It would be better to follow in taqlid some of the dead mujtahids like the Shaykh alAnsari, who, on the admission of the nowliving mujtahids themselves, was the most knowledgeable and learned.
Basically, the 'secret' of ijtihad lies in applying general principles to new problems and changed circumstances. The real mujtahid is one who has mastered this 'secret', who has observed how things change, and subsequently how the rulings on them have changed. For there is no skill in only thinking about things which are in the past and have already been thought about; or, at the most, changing an ala laqwa into an ala lahwat.[39] or vice versa; there is no need to make a song and dance about any of this.
Of course, ijtihad has many preconditions and prerequisites; a mujtahid must have acquired the various [preliminary] sciences. It is necessary that he should have applied himself to the study of Arabic language and literature, to logic, to the study of usul (jurisprudence), even to the history of Islam and the fiqh of the other sects, so that he might become a true and thorough faqih. No one can ordinarily lay claim to ijtihad just by reading a few books on Arabic grammar, or rhetoric and logic, then three or four of the set books for the intermediate stage, such as the "Fara'id", the "Makasib" or the "Kifaya"[40], and then spending a few hours in the darsi kharij.[41] He does not then become qualified to sit with the "Wasa'il" and "Jawahir"[42], in front of him and issue legal opinions. He must be completely knowledgeable in exegesis and hadith, that is to say in the several thousands of hadith which appeared in the two and a half centuries from the time of the Prophet to the time of the Imam alHasan alAskari, and of the circumstances in which they appeared; he must also know Islamic history and the fiqh of other Islamic sects, and the narrators of traditions and their biographies and reliability.
Ayatullah Burujirdi was a true faqih. It is not my habit to mention people by name, and while he was alive I never mentioned him in my lectures. But now that he has died and there can be no ulterior motive, I can say that this man was truly a distinguished and outstanding faqih. He was conversant with, and proficient in, all these sciences, in exegesis, hadith, knowledge of the narrators of hadith, in the sciences of the evaluation of hadith (ilm al-daraya), and in the fiqh of the other sects of Islam.
The work of a faqih and mujtahid is the deduction and derivation of the precepts [of the sharia]; but his knowledge and understanding of all things, in other words, his worldview, has a great influence on the decisions he makes. The faqih must have all the information on matters upon which he is going to issue a fatwa. If we imagine a faqih who is always sitting in the corner of his house or his madrasa, and compare him with a faqih who is conversant with the currents of life, both of them refer back to the valid proofs of the sharia, but each one of them will derive his legal rulings in a particular way, using a particular method.
Let me give an example. Suppose that someone who grew up in Tehran, or in a big town like Tehran, where running water is in plentiful supply and there are reservoirs and tanks and gutters, becomes a faqih and wishes to issue a fatwa concerning the precepts about what is pure and what is impure. When he refers to the hadiths on purity and impurity, such a person will, owing to his own previous experience, make a deduction in a way which will be extremely circumspect and will necessitate the avoidance of many things. But the same person, once he has been to the House of God [the Kaaba] and seen the conditions of purity and impurity and the lack of water in that place, will find himself changing his outlook regarding the subject of purity and impurity. After such a journey, if he consults the hadiths on this matter, he will see them in a different light.
If someone compares the fatwas of the fuqaha' with each other, and then pays attention to the individual circumstances and each of these scholars' ways of thinking about living problems, he will see how the mental environment of a faqih and the information he has concerning the outside world influence his legal rulings in such a way that the legal rulings of an Arab faqih have an Arabic flavour, those of an Iranian have an Iranian flavour, and those of a countrydweller have a rustic flavour as opposed to the urban feel of those of a citydweller.
This religion is the final religion; it is not exclusive to a particular time or place; it is relevant to all times and places. It is a religion which came to establish order and progress in the life of man, so how could a faqih who is uninformed of the natural arrangement and movement of things and who does not believe in a progression towards perfection in life, deduce the high and truly progressive laws of this upright (hanif) religion in a way which is in perfect accordance with the truth? For this religion came to give order to this natural arrangement, movement and development, and it guarantees its guidance.
At the present time, we have some cases in our fiqh where our fuqaha' have given a definite ruling on the requirement of something only because they have seen the necessity and importance of the matter. In other words, since there is no transmitted evidence from the verses of the Qur'an or from hadith which is explicit and sufficient, and since there is also no valid consensus in the matter, they have used the fourth basic principle of derivation, i.e., the principle of independent reasoning (aql). In this kind of instance, the fuqaha' become certain that the command of God in such andsuch a case is suchandsuch, because of the importance of the matter and their knowledge of the spirit of Islam which leaves no important matter in abeyance. For example, in the case of the legal ruling given by the fuqaha' concerning the guardianship (wilaya) of the ruler and the subsidiary problems connected with it, if the importance of this matter had not been realised, no legal rulings would have been issued. The fuqaha' have only issued them to the extent which they understand to be necessary. Other instances similar to this can be found where the reason that a legal ruling has not been given is the fact that the importance and necessity of the matter has not been fully realised.
Here I have a recommendation which could be most useful for the advancement and development of our fiqh. It was previously put forward by the late Shaykh Abd alKarim alYazdi[43], and I am here only reiterating his proposal.
He asked what it was that required people to follow only one person in taqlid in all matters. Would it not be better if specialised divisions were established in fiqh? That is to say, there would be groups who, after having completed the general study of fiqh and become experts in it, would specialise in one particular section, and then people would follow them in that particular section. For example, some would take as their specialisation ibadat (the rites of Islam), and others muamilat (transactions), some siyasat (politics), and other ahkam (criminal law); this is exactly what has been done in medicine where specialised branches have been created, and doctors divided into groups for each speciality, some being heart specialists, some eye specialists, some ear, nose and throat specialists, and others specialists in other branches. If this were done, each person could study his own branch more thoroughly. I believe that there is a discussion of this matter in the book "alKalam Yajurru lKalam" by the Sayyid Ahmad al-Zanjani.[44]
This recommendation is a very good one, and I will add only that the need to divide fiqh up and to create specialised branches arose a hundred years ago, and in present circumstances the fuqaha of today will impede the forward development of fiqh and stunt its growth unless they heed this recommendation.
The division of the sciences is the result of their development, but also its cause. For a science gradually progresses until it reaches the point where it is no longer possible for a single person to investigate all the problems it raises. It must then necessarily be divided up into branches of specialisation. Thus the division of a science and the creation of branches within it is the result and the effect of the development of that science, while, at the same time, more progress is made when these branches are created, and thought can be concentrated on the special problems in each branch.
In all the world's sciences - medicine, mathematics, law, literature and philosophy - branches of specialisation have been created, and for that very reason progress has been accelerated in each of these branches.
There was a time when fiqh was a very limited science. When we refer back to the texts before the time of the Shaykh alTusi, we see how restricted it was. By writing his "alMabsut", alTusi took fiqh into new realms and enlarged its scope, and in the course of time, as a result of the efforts of the ulama' and fuqaha, and because of the creation of new problems and the initiation of new investigations to answer them, fiqh progressed even further, to the point where, about a hundred years ago, when the author of the "Jawahir" wrote his complete compendium of fiqh, he was only just able to finish it. It is said that he started his task when he was about twenty years old, and that, thanks to his extraordinary genius, continual work and a long life, he was able to write the last pages right at the very end of his life. The "Jawahir" was printed in six very bulky [lithographed] volumes, while the whole of alTusi's "alMabsut", which was in his time the example of a comprehensive work on fiqh, is probably less than half of one of these six volumes. After the author of the "Jawahir" died, the foundations of a new fiqh were laid by the Shaykh Murtada alAnsari, and the epitome of this new fiqh was that great man's "alMakasib" and "alTahara".[45] Since his time, noone could even conceive of teaching a complete cycle of fiqh with such thorough explanation and research.
At the present time, after this advance in the development of our fiqh, which occurred in the same way as similar advances in other sciences all over the world, and which has been the result of the efforts of the ulama' and fuqaha' of the past, the scholars of today will find themselves faced with the choice of either curbing any further progress in fiqh or putting this sensible and progressive recommendation into practice and creating branches of specialization, as a result of which people will come to discriminate in their taqlid, in the same way as they discriminate in referring to a doctor.
There is another recommendation which I wish to make, and the more fully I explain what I have in mind the better it will be. At the present time, when branches of specialization exist in every science, resulting in breathtaking advances in these sciences, there is another practice which, in its turn, has acted as a contributing factor, and this is practical and theoretical cooperation between first rank scientists and specialists in all the branches of science. Now, solitary theorising or experiment no longer has any value, nothing is to be achieved from going one's own way. In every branch, scholars and scientists are constantly engaged in exchanging ideas; they put the results of their thinking at the disposal of other specialists, and the scientists of one continent cooperate with those of another. The result of this theoretical and experimental cooperation between first rank scientists is that if a useful and valid theory is put forward, it can be published and establish itself more quickly, whereas, if a theory is weak, its failing can be discovered and it can be eliminated sooner, so that in the future the pupils of the authorities who developed these theories will be saved from these errors.
Unfortunately, we still have not created any division of labour or specialization among ourselves, no practical or theoretical cooperation, and it is clear that as long as this is delayed, progress and the solution of difficulties cannot be achieved. There is no need for a proof of the need for scientific cooperation and the exchange of ideas since it is so selfevident, but so that it may not be doubted, I shall show, by quotations from the Qur'an and "Nahj alBalagha ", that this recommendation, this progressive order, is to be found within Islam itself.
In the Qur'an, in the sura called alShura (Counsel), it is said: And those who answer their Lord, and perform the prayer, their affair being counsel between them, and expend of that We have provided them with. (42:38) This verse describes the true believers and followers of Islam in this way: they reply to the call of God, they establish prayer, they do their work in consultation with each other, and they dispose of that which God has bestowed on them. So, in the view of Islam, consultation and the exchange of ideas is one of the basic principles of life for people of faith, the true followers of Islam.
In "Nahj alBalaqha" it is said: Know that a group of the slaves of Allah with whom knowledge of Allah was entrusted keep His secret; they cause His springs to flow (i.e., they open the springs of knowledge for the people), they have friendly relations with one another and feelings of affection, they meet each other with warmth and cheerfulness and love, they quench each other's thirst from the cup of their acquired knowledge, and they emerge with their thirsts quenched. If scientific consultation were to come into existence in the science of fiqh, and the principle of the exchange of ideas were to be thoroughly practiced, many of the differences between legal opinions would be resolved, quite apart from the advances that would be made in the science as such. There is no alternative: if we maintain that our fiqh is also one of the world's genuine sciences, we must make use of the methods used in the other sciences. If we do not, the result will be that it will no longer be considered a science.
I have other useful and urgent recommendations, but my time is running out and I cannot mention them now, for it would take almost another three quarters of an hour, and I know that some people have a long way to go to reach their homes.
The verse of the Qur'an which I quoted at the beginning was: It is not for the believers to go forth all together; but why should not a party of every section of them go forth, to become learned (yatafaqqahu) in the religion, and to warn their people when they return to them, that they may beware. (9:122) This verse explicitly instructs that a group of the Muslims should study (tafaqquh) their religion and let others benefit from what they have studied. Tafaqquh is from the root fqh. The meaning of fiqh is not mere understanding: rather, it is deep understanding of, and perfect insight into, the truth of something. In his "Mufradat", Raghib [46], says: Fiqh is the reaching for hidden knowledge by means of manifest knowledge. Taffaquh is defined as: Going after something and becoming expert in it. The above verse is addressed to Muslims whose understanding of Islam is not superficial, telling them to think deeply and discover the meaning and the spirit of the rules of Islam. This verse is the evidence for ijtihad and the study of fiqh, and it is also the evidence for our recommendations. Just as this verse lays the foundation for ijtihad and tafaqquh in Islam, so also it advocates that these two things should be more widely practiced. More attention should be paid to what is required, the ulama' should start to sit in fiqh counsels, the individualistic approach should be discouraged, and branches of specialization should be created, so that our fiqh may continue on its path of perfection.
Abd Salih, the "Righteous Servant". For this story see the sura of "alKahf', 60 82. Since he obviously refrains from such activities. According to a commonly accepted ruling, this applies only to those matters which the muqallid formerly performed according to the fatawa of the subsequently deceased marja al-taqlid. If any new matter arises for him, he must follow the fatwa of a living, adil mujtahid Two principles (usul amalia) for the preponderance of one opinion over another in fiqh. If one opinion is chosen over another ala laqwa, it is chosen because the proof for it is thought to be stronger; if it chosen ala lahwat, it is because of the principle of precaution (ihtiyat) which requires that what is least likely to be at variance with the sharia should be adopted. It will be appreciated that there may be a good deal of rather trivial argument as to whether one or the other of the two opinions should be chosen, according to which of these two principles is preferred. a) for "Fara'id al Usul", see above, note 26. b) "Kitab alMakasib", also by the Shaykh alAnsari, an extensive exposition of the section in fiqh on transactions. c) "Kifayat alUsul" (2 vols, Tehran, n.d.) by "Akhund" Mulla Muhammad Kazim alKhurasani (d. 1329/1911), a systematic text on usul alfiqh. After the student (talaba, lit. 'seeker') has completed his reading of the main texts and mastered the necessary preliminary sciences, he may continue to the more detailed, but also more specialised, courses given by the main teachers of the subjects concerned. These lessons, the darsi kharij, are kharij to (outside, beyond) the texts, and the teacher will expound his own opinions, thus teaching the actual practice of ijtihad. The teacher will be able to assess the abilities of his pupils in these classes, and, in the case of fiqh, may subsequently award a certificate of ijtihad to those he considers to have mastered all the required skills and to be consequently in a position to employ them to arrive at their own legal opinions (see also above, note 23). a) "Wasa'il alShia" (ed. A. alRabbani M. alRazi, 20 vols, Tehran, 1376 1389), by the Shaykh Muhammad b. alHasan alHurr alAmili (d. 1104/1693); the most comprehensive collection of hadith relevant to fiqh, arranged according to subject matter. b) "Jawahir alKalam" (ed. A. Quchani et al., 43 vols, Najaf-Qum-Tehran, 13771401), by the Shaykh Muhammad Hasan b. Baqir alNajafi (d. 1266/1849); an extensive commentary on the "Sharayi alIslam" by the Muhaqqiq alHilli (602/1202 676/1277). The Shaykh Abd alKarim b. Muhammad Jafar alMirjirdi alYazdi alHairi (1276/185960 1355/1937), whose move from Arak to Qum in 1920 began the modern history of that city as a centre of Shii learning. The Sayyid Ahmad alHusayni alZanjani (1308/1890 1393/1973), a Qummi scholar. His "alKalam Yajurru lKalam" (3 vols, Tehran, 1363/1944) is a compendium of historical, literary, biographical and hadith information. By the Shaykh alAnsari. "AlMufradat fi Gharib alQur'an'', (ed. M. S. alKilani, Cairo, 1961), by Abu lQasim alHusayn b. Muhammad b. alMafdal alIsfahani (d. 502/11089), a famous lexicon of obscure meanings in the Qur'an.